CONCEPT OF PLEA BARGAINING & OVERVIEW UNDER THE INDIAN LEGAL SYSTEM By- Amal Singh Patel & Ananya Rai
CONCEPT
OF PLEA BARGAINING & OVERVIEW UNDER THE INDIAN LEGAL SYSTEM
ABSTRACT
India's effectiveness in criminal investigation, prosecution, and trial
is in question, and its credibility is in jeopardy due to the fact that more
than 70% of those accused have been found not guilty. Plea bargaining may be a
limited solution in which criminal confessions are negotiated under judicial
supervision in the hopes of expediting the trial and sentencing process. Crime,
criminals, and criminality have always been major issues for society, the
state, and individuals. As a rule, the criminal justice system is designed to
defend the rights and interests of the accused. There has been a recent rise in
calls for justice for the true victim of a crime. Recently, several steps have
been developed to ensure that each victim receives justice. A regular evaluation
of such procedures is necessary for the creation of efficient justice measures
to ensure that the victim receives justice. The Indian criminal justice system
has lately included plea bargaining as a way of ensuring justice for the
victim. India has a population of over 1.25 billion people with a backlog of
criminal cases totalling 22306834 out of 31122421 total outstanding cases.
Delays in the judicial system have the effect of diminishing faith in people's
ability to receive justice from the courts.
Keywords:
Compensation; Criminal justice; Habitual criminal; Plea bargaining; Restorative
justice; Sentence; Victim; Justice; Plea; Bargaining; accused; court; case.
INTRODUCTION
It is often believed that the nineteenth century was the beginning of
the emergence of plea bargaining; however, the practise actually extends back
centuries to the advent of confession law and has almost certainly been around
for more than eight centuries.
Nani Palkhivala, a well-known jurist, said, “The greatest drawback of
the administration of justice in India today is because of delay of cases. The
law may or may not be an ass, but in India, it is certainly a snail, and our
cases proceed at a pace which would be regarded as unduly slow in the community
of snails. Justice has to be blind, but I see no reason why it should be lame.
Here it just hobbles along, barely able to work.”[3]
In democratic
nations such as India, it is largely the role of the court to ensure that
justice is carried out. The Criminal Justice System in India has been
criticised for not being able to deliver justice in a timely manner. Because
the courts are overcrowded with outstanding arrears, the proceedings in court
take a very long time and cost a great deal of money.
In the adversarial
jurisprudential system, legal complexity prolonged court proceedings,
making it harder for prosecutors to convict guilty offenders. Individuals
remained detained owing to legal challenges and delays in criminal charges. The
United States of America was the first nation in the world to come up with the
idea of entering into a plea bargain in order to overcome these problems.
Although the
concept of plea bargaining has been accepted in India and included into the
country's Criminal Procedure Code (CrPC), it should be noted that the practise
has not been completely imported from other countries legal systems, such as
the one in the United States; rather, it has been adopted with some
modifications. “The provisions of Chapter XXI-A of the Code of Criminal
Procedure (CrPC) related to plea bargaining in the Indian criminal justice
system were added by the Criminal Law (Amendment) Act 2005 (2 of 2006), which
came into force on July 7, 2006.”[4]
It
is generally agreed that the doctrine of Nolo Contendere[5]
served as the impetus for the development of the Indian notion of Plea
Bargaining. During pre-trial negotiations between the defence and the
prosecution, also known as “plea bargaining”, an accused person may agree to
plead guilty in exchange for the prosecution granting them specific concessions
in exchange for their guilty plea. The word “plea bargaining” is a legal term
that refers to negotiations that take place before to a trial between the
prosecution and the defence. It would be up to the judge to decide whether or
not the plea bargaining was conducted in bad faith or in good faith.
There
are specific circumstances in which a plea bargain cannot be used. There is no
plea bargaining in three types of cases: crimes against women, crimes against
minors younger than 14 years old, and crimes against the socio-economic
offences. When the punishment is under seven years, plea bargaining is allowed,
like in other countries but Habitual criminals can't plea bargain. In the
long run, the implementation of plea bargaining will be beneficial since it
will help to contribute to the improvement of our criminal justice system.
WHAT
IS PLEA BARGAINING?
The
concept of plea bargaining is comprised of two words: “plea,” which means
to make a request, prayer, or emotional appeal; and “bargain,” which means to
negotiate or reach a settlement or contract. Typically, this may be observed in
our day-to-day lives, when we bargain with shopkeepers about prices. This
principle serves the similar function in criminal law, but the defendant in
this context enters a guilty or “no contest” (Nolo Contendere) plea in
order to negotiate a lighter sentence or a reduction in the severity of the
allegations against them.
The
applicability of plea bargaining in India is discussed in Chapter XXIA,
Sections 265A-265L of the Criminal Procedure Code. Understanding some of its
more fundamental definitions is the first step toward providing an effective
explanation of the concept of plea bargaining. It can be defined as “a plea
bargain (also plea agreement, plea deal or copping a plea) is an agreement in a
criminal case in which a Prosecutor and a defendant arrange to settle the case
against the defendant. The defendant agrees to plead guilty or no contest (and
often allocate) in exchange for some agreement from the prosecutor as to the
punishment. A plea bargain can also include the prosecutor agreeing to charge a
lesser crime (also called reducing the charges) and dismissing some of the
charges against the defendant.”[6]
In
the context of criminal proceedings, “plea bargaining” refers to a form of
agreement between the accused and the prosecution over the disposal of criminal
allegations. The negotiation of a plea deal is similar to the signing of a
contract, and the agreement does not become legally binding until it is
accepted by the court. According to Black's Law Dictionary, a plea bargain is:
“The
process whereby the accused and the prosecutor in a criminal case work out
mutually satisfactory disposition of the case subject to court approval. It
usually involves the defendant’s pleading guilty to a lesser offence or to only
one or some of the counts of a multi-count indictment in return for a lighter
sentence than that possible for the grave charge.”[7]
According
to the 144th Report of the Law Commission of India, “plea bargaining” generally
refers to pre-trial negotiations between the defendant and the prosecution
prior to trial in which the defendant agrees to plead guilty in exchange for
specific concessions from the prosecution. In most jurisdictions, three types
of plea bargaining are recognised by the courts:
1.
Sentence bargaining: - “It is a type of plea bargaining in
which the accused admits to a crime in exchange for a lighter sentence than he
would have gotten if the Court had found him guilty of the crime through the
normal legal process.”[8]
2.
Charge bargaining- “In this type of plea bargaining,
the accused person agrees to accept responsibility for a few of offences that
were less serious in nature than the other offences in exchange for reduced
charges and penalties. So, the rest of the charges against the accused are
dropped. This is the form of plea bargaining that is the most common and
well-known. For instance, pleading guilty to homicide in exchange for the
removal of the accusations of homicide.”
3.
Fact bargaining- “In this type of plea bargain, the
parties agree to present a number of facts to the Court while under the
watchful eye of the judge, and they typically do not bring any other fact to
the notice of the judge. In most jurisdictions, the courts do not recognise this
form of plea bargaining as permissible under the law. The argument in favour of
not allowing truth bargaining is based on the fact that doing so would be
disruptive during the period of time spent organising equity. The parties may
attempt to influence the outcome of the case by withholding relevant
information from the Court through ‘fact bargaining,’ which could lead to an
unfair ruling. When parties engage in truth bargaining, it becomes the
responsibility of the court to determine whose claims are supported by evidence
and whether or not the honest party will be punished for telling the truth.”[9]
The additional two types of plea bargaining that are accepted in
international jurisprudence are known as express and implicit plea bargaining
respectively. In express bargaining, the accused or his attorney directly
negotiates with the prosecutor or the trial judge for any benefits that may
result from entering a plea of guilty. On the other hand, implicit bargaining
takes place in the absence of direct verbal communication between the parties. In
implicit bargaining, trial judges treat guilty pleaders more leniently than
those who go to trial; thus defendants expect their guilty pleas to be rewarded.
ORIGIN
OF PLEA BARGAINING
There
is evidence of plea bargaining going all the way back to the beginning of time
in the epics, jurisprudence, and historical documents of a number of different
cultures. The evolution of plea bargaining in the United States has not been a
smooth one. Prior to the year 1960, it was not accorded a great deal of
attention and was regarded as an improper practise. However, in 1692, there was
an example of this known as the Salem witch trials. During these trials,
witches were ordered to confess in order to save their lives, or else they
would be sentenced to death. This method, in which witches testify against one
another, is intended to provide the court with additional benefits, one of
which is the discovery of new witches.
The
notion of plea bargaining has its roots in the United States and has developed
over the years to become an integral part of the American criminal justice
system.[10]
More than seventy-five percent of all criminal prosecutions in the United
States end in guilty pleas, almost all of which are the result of plea
bargaining. In the landmark case Brady v. United States[11],
the US Supreme Court ruled that plea bargaining is legal under the
Constitution. The court has maintained, through its rulings in a variety of
subsequent cases, that the practise of plea bargaining is constitutional.[12]
The
most important Hindu epic “The Bhagwat Geeta” states that there is no greater
penalty for an offender than for him to accept guilt and take an oath not to
perpetrate the offence again. There is a separate chapter on admitting of guilt
in the Dharmasastras called “Prayaschita.” This chapter recommends a variety of
ways of introspection and self-purification that are recognised by all of the
smriti's and the Vedas. In verse 239 of Manu Smriti, it is written that an
accused person should be granted a reduction in their punishment if they feel
guilty.
·
WHEN ARE PLEA BARGAINS MADE?
A plea bargain may be made by an accused when-
o The officer in charge of
the police station has forwarded the report in accordance with Section 173 of
the Criminal Procedure Code, alleging that an offence appears to have been committed
by him that is not an offence for which the punishment of death or of
imprisonment for life or of imprisonment for a term exceeding seven years has
been stipulated by the law that is currently in force.
Or
o A magistrate took
cognizance of an offence on complaint, other than an offence punishable by
death, life imprisonment, or more than seven years, and issued process under
Section 204 after considering the complaint and witnesses under Section 200.
· LIST
OF OFFENCES THAT AFFECT THE SOCIO-ECONOMIC POSITION OF COUNTRY
If the accused is found guilty of an offence, that offence cannot be of a character that adversely affects the socioeconomic state of the nation. The government compiled a list of laws, each of which defines an offence as belonging to the aforementioned category.
If the accused is found guilty of an offence, that offence cannot be of a character that adversely affects the socioeconomic state of the nation. The government compiled a list of laws, each of which defines an offence as belonging to the aforementioned category.
a) Dowry
Prohibition act, 1961.
b) The
Commission of Sati prevention act, 1987.
c) The
Indecent representation of women (Prohibition) act, 1987.
d) The
immoral Traffic (Prevention) act, 1956.
e) PWDVA
(The Protection of women from domestic violence), 2005.
f) The
Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of
Production, Supply and Distribution) Act, 1992.
g) Provisions
of Fruit Products Order, 1955 (issued under the Essential Services Commodities
Act, 1955).
h) Provisions
of Meat Food Products Orders, 1973) (issued under the Essential Commodities
Act, 1955).
i) Offences
with respect to animals that find place in Schedule I and Part II of the
Schedule II as well as offences related to altering of boundaries of protected
areas under the Wildlife (Protection) Act, 1972.
j) The
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
k) Offences
mentioned in the Protection of Civil Rights Act, 1955.
l) Offences
listed in sections 23 to 28 of the Juvenile Justice (Care and Protection of
Children) Act, 2000.
m)The
Army Act, 1950.
n) The
Air Force Act, 1950.
o) The
Navy Act, 1957.
p) Offences
specified in sections 59 to 81 of the Delhi Metro Railway (Operation and
Maintenance) Act, 2002.
q) The
Explosives Act, 1884.
r) Offences
specified in sections 11 to18 of the Cable Television Networks (Regulation)
Act, 1995.
s) The
Cinematograph Act, 1952.
CONCEPT
OF PLEA BARGAINING IN INDIA
India
did not have a system of plea bargaining until the Criminal Law (Amendment) Act
of 2005 was passed. The Indian courts did not recognise the practise of plea
bargaining as a valid form of legal procedure and have repeatedly ruled that
plea bargaining violates the country's constitution and is therefore not
permitted under Indian law. On January 11, 2006, the Code of Criminal Procedure
was amended to allow plea bargaining in India. This impacts cases with a
seven-year maximum sentence, however offences harming the country's
socioeconomic status and crimes against women or children under 14 years of
age are exempted.[13]
A
recommendation to include plea bargaining as a new chapter in the Criminal
Procedure Code of India was made by the 142nd, 154th, and 177th report of Law
Commissions of India. There were many other proposals, but they all failed.
However, with a few changes and recommendations, it was added to CrPC through
the Criminal Amendment bill of 2005. Prior to this modification, the Supreme
Court did not have a supportive stance regarding this matter. To the contrary,
the Courts upheld the position that plea bargaining was not an accepted
practise under Indian law.
THE
CONSTITUTIONAL VALIDITY OF PLEA BARGAINING BEFORE THE ENACTMENT OF THE CRIMINAL
LAW AMENDMENT ACT, 2005
In
India, the courts did not see plea bargaining as a legitimate way to solve
cases. The Indian Courts of Law have repeatedly ruled that the practise of plea
bargaining is contrary to Indian law and cannot be tolerated under its
provisions. The courts held that plea bargaining wasn't part of Indian criminal
law. The highest court in India has consistently held the position that this
approach violates the constitution, is against the law, and has the potential
to encourage corruption and collusion between the parties.
The
first time the Supreme Court looked at the concept of a plea bargain was in Madanlal
Ramachander Daga v. State of Maharashtra[14],
where it said: “In our opinion, it is very wrong for a court to enter into a
bargain of this character Offences should be tried and punished according to
the guilt of the accused. If the Court thinks that leniency can be shown on the
facts of the case, it may impose a lighter sentence.”
In Thippaswamy
v. State of Karnataka[15]
J. Bhagwati said, “It would be clearly violative of Article 21, of the
Constitution to induce or lead an accused to plead guilty under a promise or
assurance that he would be let off lightly.”
Introduction
of plea bargaining was condemned by the Supreme Court in State of Uttar Pradesh
v. Chandrika[16],
The Apex Court held that, “It is settled law that on the basis of plea-bargaining
court cannot dispose of the criminal cases. The court has to decide it on
merits. If the accused confesses its guilt, appropriate sentence is required to
be implemented. Mere acceptance or admission of the guilt should
not be a ground for reduction of sentence. Nor can the accused
bargain with the court that as he is pleading guilty the sentence be reduced.”
The
Supreme Court has made the observation that this approach is detrimental to the
interests of society because it goes against the predetermined legislative
setting of minimum punishments. It has been pointed out that permitting plea
bargaining in India would amount to covertly subverting the mandate of the law.[17]
In
the case of Kachhia Patel Shantilal Koderlal v. State of Gujarat,[18]
India's highest court made the observation that “the practise of ‘plea
bargaining’ taints the pure wellspring of justice and goes against the
country's national policy. It is necessary to place reliance on the court's
worry that businessmen offenders may be able to trade their way out of the
problem, with the exchange being a guilty plea combined with the assurance that
they would not go to jail.”
In
the case of Kasambhai Abdul Rahmanbhai Sheikh v. State of Gujarat,[19]
the Supreme Court ruled that the practise of entering into a plea bargain is
illegal because it is a violation of the fundamental right known as the Right
to life. The court went on to comment that if plea bargaining is permitted,
then even persons who haven't done anything wrong might consider pleading
guilty since it seems like a more workable alternative to sitting through a
lengthy trial. This could result in innocent people being punished, which would
be contrary to the principles of natural justice. The Indian courts viewed plea
bargaining as unconstitutional and illegal until the Criminal Law (Amendment)
Act of 2005, which legalised it.
PLEA
BARGAINING: WITH SPECIAL REFERENCE TO REPORTS OF THE LAW
COMMISSION OF INDIA
In
its 142nd report, the Law Commission of India proposed plea bargaining. In its
report, the commission noted that in numerous cases, the accused's time in jail
before trial surpasses the maximum punishment they can receive if proven guilty[20],
there is a lack of statistical data on under trial detainees, etc., resulting
in a denial of justice. The report emphasised the need for an upgraded
approach.[21]
Concerns for introducing plea bargaining in India included illiteracy,
prosecution pressure on innocent people, increasing crime rates, and criminals
escaping proper punishment. The commission recommended weighing the pros and
cons before adoption.
In
its 154th Report, the Law Commission highlighted the necessity for legislative
measures to decrease delays in criminal trials and appeals and to alleviate
inmates' suffering. The Report of the Committee on the Reform of Criminal
Justice System, under the Chairmanship of Justice (Dr.) Malimath indicated that
plea bargaining is a way to dispose of accumulated cases and expedite criminal
justice.[22]
In
its report, the Malimath Committee proposed that a system of plea-bargaining be
adopted into the criminal justice system of India in order to assist the early
resolution of criminal cases and decrease the burden on the courts.[23]
This will help facilitate earlier resolution of criminal matters. As a result
of amendments to the criminal law that were enacted in 2005,[24]
the process of plea bargaining was made available to defendants. Chapter XXIA
of the Code, which contains the sections 265 A to 265 L, was added as a result
of the Amendment Act's Section 4, and it became fully operational on July 5,
2006.
The
Supreme Court recognised the relevance of supplication bartering in the case State
of Gujarat v. Natwar Harchanji Thakor.[25]
It enlarged on the way that every “request of blameworthy” that is done in the
legal approach of the criminal preliminary ought not to be seen as “supplication
bargaining.” It needs to be decided on a case-by-case basis. Considering the
developing challenges in the criminal equity framework, the Court concluded
that authorities want simple, rapid, and modest equity.
In Ranbir
Singh v. State,[26]
it was held that “the accused pleaded guilty and engaged into a plea bargain
with the prosecutor and the victim. The accused was charged with causing the
death of another by driving negligently.[27]
Even after the accused, prosecutor, and victim reached a mutually acceptable
decision, the Trial Court imposed the maximum sentence. On appeal to the High
Court of Delhi, the court noted that the accused was destitute but had promised
to pay a fair sum of compensation to the victim's family, which was mutually
acknowledged. In light of this, the court lowered the accused person's sentence
to one-fourth of the maximum sentence that might have been imposed under
Section 304A of the Indian Penal Code in accordance with Section 265-E of the
Code of Criminal Procedure.”
A
similar decision was made in the case of Joseph P.J. v. State of Kerala,[28]
in which it was decided that “the procedure for plea bargaining, as established
under Sections 265-A to 265-L of the Code of Criminal Procedure, is of a
required nature and must be followed by all of the Courts when dealing with an
application for plea bargaining. In addition, the court ruled in this instance
that an act or omission on the part of the court shall result in gross
illegality, and such an order or judgement granted by the court must be
invalidated if it was determined that the court did not examine the accused in
front of the camera while the complainant was absent, as required by clause 4
of section 265-B. The court stated that this ruling applies to any circumstance
in which the court does not examine the accused as required by clause 4 of
section 265-B.”
In
the case of Shri Vinod Kumar Agarwal v. Central Bureau of Investigation,[29]
The court found the revisionist's plea unsatisfactory. The arrangement of
Section 265-A (1) (a) Cr. P.C. becomes effective when the police headquarters
official sends a report under Section 173 Cr. P.C. charging that the denounced
has committed an offence. In accordance with Section 173 of the Criminal
Procedure Code, the formal application for the supplication cannot be initiated
prior to the lodging of the police report. Section 265-A (1)(a) of the Criminal
Procedure Code is written in straightforward, unambiguous language. Expansion
or change in charge is preliminary. The court that is overseeing the
preliminary proceedings is required to take into consideration the request
dealing application in light of further offences that have been committed.
In the case of M/S/ Meters and
Instruments Private Limited & Anr. v. Kanchan Mehta,[30]
the Honourable Supreme Court of India held that “it is permissible for the
Court to constantly ask specific questions to the accused at any point of the
trial. This decision was made while the Court was deciding a matter that was
relevant to Section 138 of the Negotiable Instruments Act. At the same time,
the court must take into consideration the provisions of plea bargaining if
there is any potential of a settlement between the accused and the victim at
any stage of the trial, and the court should permit plea bargaining if it is
possible. If there is any prospect of a settlement between the accused and the
victim at any stage of the trial.”
EXAMINING THE PRACTICE OF
PLEA BARGAINING IN INDIA
The information that was collected by the public authority beginning in
2015 made it abundantly clear that the measure of plea bargaining was not used
anywhere in India. In 2015, just 4,816 cases out of a total number of
10,502,256 cases that were forthcoming for preliminary hearings under the
general punitive law were subject to plea bargaining. This represents a modest
0.045% of the total number of cases.
In 2016, there were approximately 4,887 instances out of a total of 11,107,472,
which brought the percentage down to 0.043%. In 2017, there was some growth to
0.27%, with 31,857 cases out of 11,524,490 going for plea bargaining. This
represents an increase from the previous year. Nevertheless, this was not a
process with a pattern because, in 2018, the cases witnessed an entire decline,
with just 20,062 out of 12,106,309, and a modest 0.16% of cases being
eliminated through plea bargaining. In other words, this was not a procedure
that followed a pattern. It is disappointing to realise that this statistic has
not even reached 1% in the past 15 years. This is something that should be
looked into.[31]
Accordingly,
the primary aim of a swift beginning has not been fully and completely
achieved. The reason why plea bargaining became popular in the United States
was because it effectively provided examiners more authority, which they could
wield over respondents to encourage them to plead blameworthy and postpone
preliminary proceedings. However, the framework that is envisaged to be
implemented in India does not in any way give such influence to the public
investigators or to the designated authorities that are involved. Examiners,
for instance, have very little room to participate in the bargaining cycle or
to actually effect a plea, and judges are unable to reject a settlement that
has already been chosen.
There
is no provision in the current plea-bargaining law that empowers judges to
reject a settlement. But the judge should be vigilant to prevent prosecutorial
intimidation and defilement. The arraignment and the safeguard have unequal
bargaining power. A strong prosecution can convince a blameless defendant to
plead guilty in exchange for a less sentence. Also, unlawful plea negotiating
can occur between real offenders and honest accused, with the former using
degraded officials to avoid the criminal justice system.
MERITS
OF PLEA BARGAINING IN INDIA
Plea
bargaining benefits both the prosecution and the defence because there is no
risk of losing at trial. As a result, it makes it easier for lawyers to protect
their clients in an uncomplicated manner and gives both groups the authority to
bargain. This is the method that the lengthy disputes can be resolved, and the
court would also not be need to deal with the burden of case records.
When
considering the potential benefits of plea bargaining in India, it is important
to note that it will aid in the reduction of delay, backlogs of cases, and the
rapid disposition of criminal cases, freeing up court time that can be utilised
to hear more serious criminal cases; providing victims and witnesses of crime
with relief; saving the accused and the state a significant amount of time,
money, and energy; and decreasing congestion in jails. In addition, entering
into a plea bargain is an excellent way to avoid public scrutiny, given that
the accused is subjected to a larger degree of scrutiny the longer the case is
allowed to continue. As a result, entering into a plea bargain allows one to
avoid such exposure by bringing about a speedy resolution to the matter.
DRAWBACKS OF PLEA BARGAINING
IN INDIA
In
India, the reasons for delaying preliminary hearings include the operation of
informative organisations like the legal executive, lawyer interest, etc. As a
result, the requirement of utmost significance is not at all a replacement for
the preliminary yet an update of the framework that can be as far as
construction, piece, and the work culture of its organisation. All of these measures
would result in preliminary examinations being completed in a reasonable amount
of time. If the accused's previous blameworthy behaviour is overlooked, then it
will be extremely challenging for him to demonstrate that he is honest.
It's possible that this procedure will
lead to a spectacular rise in the number of innocent prisoners behind bars. It
is possible for innocent people to be compensated by the real criminals who
committed the crime in exchange for the innocent person pleading guilty and
receiving a reduced sentence. Therefore, illicit plea bargaining between
genuine culprits and appear accused could potentially become allowed, leading
to rich criminals corrupting police officers and resulting in a court system
that is a farce. When plea bargaining does not result in acquittal, penalties,
or damages, the accused may not find it useful, and it may not work as an
incentive.
RECOMMENDATIONS
Even
though the amendment aimed to address the concerns of under trial prisoners by
requiring the court to offer accused the benefit of Probation of Offenders Act
where permitted. Then, Section 12 of the aforementioned Act stipulates that
there shall be no social stigma attached to the criminal in any way. In
addition, Section 428 is applicable to the sentence that was agreed upon during
plea bargaining. However, there is a dearth of understanding among those who
are currently awaiting trial.
Provisions
should be included in the chapter that make it obligatory for probation
officers and jail superintendents to hold sessions in prisons informing
under-trial prisoners of such a benefit that can be accessed by them. These
sessions should be held in order to notify the prisoners of their right to take
advantage of this opportunity. A pre-trial detainee should be released from
custody when a predetermined period of time has elapsed, after which a trial
should have begun or the time limit should be extended. Not the individuals who
are now awaiting trial should be held liable for delays in their cases; rather,
the authorities responsible for the investigation, prosecution, and
adjudication of the case should be held accountable. In cases where an appeal
was already filed before the 2005 Amendment, defendants should be given the
opportunity to seek this alternative remedy.
There
should be a greater level of transparency regarding the offences that are
classified as socioeconomic offences. For the purpose of determining on what
grounds an offence should be categorised as a socioeconomic offence, the
government ought to be provided with some criteria. This can serve as a check
and balance to prevent the authority from being wielded capriciously. The
section's applicability should be expanded, and classification for plea
bargaining should consider the seriousness of the crime, not only the amount of
years of imprisonment.
It
is important to establish a time limit for figuring out a resolution that is
satisfactory to both parties. Rather than being an issue of ethical excellence,
legitimateness, or lawfulness, the idea is more of a system that provides
comfort and shared advantages. There is no way around the unavoidable need for
significant reform in the component of the criminal justice system. When an
idea is turned into a collection of laws, it should forecast the obstacles that
may be seen in the exploratory phase.
CONCLUSION
To
sum up, plea bargaining is definitely a controversial idea. The plea-bargaining
component has become a reasonable and viable instrument of justice, but there
is a vital need to improve it and make it more effective. It is true that the
use of plea bargaining can speed up the process of disposing of caseloads, but
it does so in a way that is contrary to the Constitution. However, it's
possible that we have no other option except to utilise this strategy.
The
criminal justice system's backlog is so extensive that it makes it impossible
to trial every single case. As a concluding remark, it should be noted that
this transition is neither inherently good or harmful. The question is whether,
given a variety of options to reduce the backlog of cases in the Indian Courts,
plea bargaining will allow decisions that effectively promote the criminal
justice system's goals.
The
addition of Chapter XXI-A of the Code has been brought about in a manner that
displays a certain degree of circumspection on the part of our legislators.
They have severely reduced the applicability of the law, as well as the range
of options available for plea bargaining. When implementing a notion into a
legal system, it should be done so by anticipating experimental hurdles. The
provisions, in and of themselves, do not have any propensity toward lessening
case load. To encourage citizens to use plea bargaining, provisions must be
more clear and predictable.
The
contentious idea of plea bargaining can be understood as more of a device for
convenience and mutual profit than as a problem of morality, law, or
constitutionality. The system of criminal justice will unavoidably benefit from
significant reform in the near future. It is possible that this will be a
positive shift, but only if there is the chance of cases being resolved in a
timely and cost-effective manner. If the only objective of the criminal justice
system is to rehabilitate offenders into society, plea bargaining loses its
appeal. Putting this procedure under the scrutiny of the courts makes it more
likely that these negotiations will be conducted in an equitable manner.
[1] Author is student at Amity Law
School, Amity University Lucknow Campus.
[3] Nani
A Palkhivala, We, the Nation: The Lost Decades 215 (UBS Publishers
Distributors, New Dehli, 1994).
[4]
Criminal Law (Amendment) Act, 2005, No. 2, Acts of Parliament, 2006 (India).
[5] Alschuler,
Albert W.,"The Defense
Attorney's Role in Plea Bargaining, 84 “The Yale Law
Journal” 1179 (1975).
[6] Bryan
A Garner and Henry Campbell Black, Black's law dictionary (St. Paul,
Minn, West Group, 1999).
[8] Abhishek
Wadhawan, “An Analysis of The Plea Bargaining Mechanism In India: The Past,
Present And The Future” 1 LAWAUDIENCE 22 (2019).
[9] Law Commission of
India, 142nd Report on the concessional treatment for offenders who
on their own initiative plead guilty without bargaining (August,
1991).
[10] Sulabh Rewari and
Tanya Aggarwal, “Wanna make a deal? The introduction of plea bargaining in
India” (2006) 2 SCC (Cri) J-12.
[11] Brady
v. United States, 397 U.S 742
[12] Corbitt
v New Jersey, 439 U.S 212; Bordenkircher v Hayes, 434
U.S. 357
[13] The
Code of Criminal Procedure, 1973, s. 265 L.
[14] Madan
Lal Ram Chandra Daga v. State of Maharashtra, (1968) 3 SCR 34.
[15] Thippeswamy v. State
of Karnataka, (1983) 1 SCC 194.
[17] Murlidhar
Meghraj Loya v. State of Maharashtra, (1976) 3 SCC 684.
[20] Rudul
Shah v. State of Bihar, AIR 1981 SC 928.
[21] Law Commission of India, 142nd Report on the concessional treatment for offenders who on their own
initiative plead guilty without bargaining (August, 1991).
[22] Upendra Baxi, The (Malimath)
Committee on Reforms of Criminal Justice System: Premises, Politics and
Implications for Human Rights 44 (AMNESTY INTERNATIONAL INDIA, New Delhi,
2003).
[23] Id.
[24]
The Criminal Law (Amendment) Act, 2005 (Act 2 of 2006).
[25] State of Gujarat v. Natwar Harchanji Thakor, 2005
CriLJ 2957.
[31] Anshika
Chadha, Plea Bargaining In India: A Ship With Holes, LEGAL SERVICE INDIA, www.legalserviceindia.com/legal/article-1784-plea-bargaining-in-india-a-ship-with-holes.html.